Idaho Supreme Court: Judges can consider immigration status in probation decisions

Jesus Agustin Perez Garcia was the kind of defendant who would “typically get probation,” Idaho Judge Darren Simpson said.  

Perez Garcia had pleaded guilty to possessing methamphetamine and trying to hide a pipe after he was pulled over with two other men in southeastern Idaho. He was working for a construction company and living in Idaho Falls with his boss, attended every court hearing, and was enrolled in an outpatient drug treatment program, according to his public defender. Both Perez Garcia’s lawyer and the Bingham County prosecutor recommended he get probation. 

“Give me a chance, because I am continuing to try and work to support my family,” Perez Garcia said at his January 2024 sentencing hearing before Simpson, a Bingham County district judge. 

But one detail concerned the judge: Perez Garcia was undocumented, and he had reentered the country after he was deported back to Mexico in 2011.

“[A]s a condition of probation, you would be required to obey all laws including the federal laws, and I don’t know how you do that if you’re here illegally. And so it puts state courts in a difficult situation because the federal courts or the federal authorities won’t do their job according to the law,” Judge Simpson said. 

“Based on your circumstances and your history here … you would typically get probation under these circumstances. But your situation is that you’ve committed a crime for which you’ve now been convicted. You were removed once from the United States and are here illegally again. I don’t know how I can grant probation under those circumstances,” the judge added. 

The judge sentenced Perez Garcia to up to five years in prison, though he was ultimately released after serving a year. After he appealed the ruling, the Idaho Supreme Court took up the case and sided with Simpson — finding for the first time that Idaho state courts can consider a person’s immigration status in deciding whether to grant probation. 

“In this case, the district court correctly concluded that Perez Garcia lacked the ability to comply with federal law throughout his probation based on his admission in open court that he had unlawfully reentered the United States after a prior removal in 2011,” justices wrote in the April 2026 opinion.

It is not a criminal offense to be undocumented in the U.S., but rather a civil one. But reentering the country after being deported is a crime, which is what Perez Garcia did. 

The high court said a person’s undocumented status alone can’t make them ineligible for probation. But immigration status can be considered to determine whether a defendant meets the requirements, which can include defendants having a limited criminal history, obtaining legal employment, and complying with all state and federal laws.

With the ruling, Idaho joins several other state appellate courts that have upheld decisions to deny probation based in part on immigration status. State courts have also considered whether a defendant might get deported and be unable to complete court-ordered treatment, community service and other probation requirements. 

Juliet Stumpf, a law professor at Portland’s Lewis and Clark Law School, said the Idaho ruling shows how the court is “combining immigration and criminal law in ways that are more extreme than I've seen before.” She said it is rare for a court to use “the bare fact of unlawful presence after removal to allow someone to actually be incarcerated in a situation in which they would otherwise be out under conditions of probation." 

Maria Andrade, a longtime immigration lawyer in Boise, said it’s unclear if the state Supreme Court ruling is only focused on people who reentered the country after deportation or could allow courts to deny probation to undocumented people even if they didn’t re-enter the country illegally. 

While it will be up to individual judges to interpret the ruling, immigration and criminal defense attorneys worry the decision will make it more difficult for people who are not U.S. citizens to get probation — and easier for Immigration and Customs Enforcement officials, under a mandate to carry out Donald Trump’s promise of mass deportations, to deport them once in custody. Some experts also say the Idaho Supreme Court decision doesn’t consider how undocumented people, including those who have been deported at least once, can still have a path to gaining legal status. 

Lena Graber, a senior staff attorney with the national Immigrant Legal Resource Center, said the ruling “just smacks of immigration politics” and shows how political debates are seeping into the criminal justice system.   

“This sets a bad precedent in Idaho for the ability of noncitizens to get probation,” Graber said. “That’s bad because then more people are in jail for minor offenses, when they would have gotten probation.”

“Poor candidate” for probation

Perez Garcia, 39, was born in Sonora, Mexico, just across the border from Arizona. 

In July 2023, he was a passenger in a car with two other Mexican men as they were driving on the Interstate 15 in Blackfoot, Idaho, according to police records. Blackfoot Police officers stopped them for a cracked windshield and an outstanding warrant for the driver. Upon searching the car, officers found Perez Garcia had a marijuana pipe in his back pocket and several grams of marijuana in the car. Police said he also tried to hide another pipe with methamphetamine residue behind the police car, according to their report. He was arrested and booked into the Bingham County jail, then released on bond. 

He later pleaded guilty to possessing a controlled substance and destruction of evidence, and signed a plea agreement that recommended he serve on probation for the crimes. 

During his sentencing hearing six months after his arrest, both the Bingham County prosecuting attorney, Ryan Jolley, and Perez Garcia’s defense attorney, Scott Madson, agreed that his immigration status should not bar him from probation. In January 2024, when Joe Biden was president, Jolley and Madson told the judge it was unlikely that Perez Garcia would get deported. 

“From a policy standpoint, if we were to simply require that he self-deport in lieu of probation, there wouldn’t be any accountability for the crime,” Jolley told the court. “There’s no probation officer supervising him.” 

Instead of requiring him to comply with federal law, Jolley suggested that the terms of Perez Garcia’s probation only require him to comply with all state laws. 

Judge Simpson turned to question Perez Garcia. 

“Why didn’t you come here and get a work visa or enter the United States legally?” he asked, after Perez Garcia said he first came to the U.S. seeking “better opportunities.” 

Perez Garcia said when he crossed the border the second time he “didn’t intend” to come in illegally, but didn’t explain what he meant.  

“And I’m sorry. I ask for forgiveness,” he said. 

“You knew you had to have papers to come in or not,” the judge responded. “You chose not to.” 

Simpson would not accept the terms of the plea deal. He ruled instead that Perez Garcia couldn’t comply with federal law — and therefore could not qualify for probation. He also said that Perez Garcia’s “situation is a bit different than somebody who was brought here as a child and didn’t really have a choice.” 

Although the circumstances are not clear, Perez Garcia was later deported amid his pending appeal. 

The Idaho Supreme Court agreed with Simpson’s reasoning.

Idaho law requires that, in their sentencing decisions, judges first consider whether defendants can safely return to the community. They also must consider a defendant’s previous criminal history and their attitude about the crime. 

On appeal, Perez Garcia argued the District Court wrongfully denied him probation solely based on his undocumented status. Idaho’s Supreme Court justices disagreed, finding the judge was “primarily concerned” that Perez Garcia couldn’t follow the terms of his probation — to abide by federal law — because he was here illegally and had unlawfully reentered the United States after having been previously deported. That also speaks to other factors the court must consider, such as a history of criminal activity and whether the defendant “is a multiple offender or professional criminal,” justices said. 

A person’s inability to comply with federal law also makes them “a poor candidate for probation because he is unable to be properly rehabilitated, which defeats the purpose underlying Idaho’s probation system,” according to the ruling. 

State courts are mixed  

A few other state appellate courts have made similar rulings. Nebraska’s Supreme Court ruled in 2017 that judges can consider a defendant’s undocumented status as long as it is relevant to their criminal offense or the sentencing factors required under state law, or speaks to the defendant’s ability to comply with probation conditions. Similar opinions have been published by the Iowa Supreme Court, Colorado Court of Appeals and Kansas Court of Appeals.

State courts are mixed over how judges can consider immigration status in criminal proceedings, according to Gabriel Chin, a law professor at the University of California Davis Law School who wrote a paper about how immigration status can impact criminal sentencing. 

Some courts have ruled that undocumented defendants show they are “unwilling to obey the law and are unsuitable for probation,” because they entered the country without authorization, he wrote. Other courts have ruled that because an undocumented defendant may get deported, they would be unable to comply with the requirements of probation, like periodic check-ins, drug treatment or community service. And some courts may issue reduced sentence lengths for undocumented defendants if their deportation is inevitable, according to Chin. 

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Stumpf, the Lewis and Clark law professor, noted that Judge Simpson’s comments at the sentencing hearing focused on Perez Garcia’s immigration violations. While the Idaho Supreme Court said judges can’t use immigration status as the only reason to deny probation, Stumpf argued Simpson was singularly focused on Perez Garcia’s undocumented status and federal reentry violation, instead of the nature of his state crimes.    

“I think the sentencing judge was very much looking at the taking away of probation as a way of increasing punishment for re-entering the United States after removal,” she said. “This is the only factor that’s leading to that decision. It’s a court that’s going much further than any court has gone before.”

Josh Hurwit, a former U.S. Attorney in Idaho and now a partner with Holland & Hart, said Simpson and other judges have broad discretion to make sentencing decisions. He said the Idaho Supreme Court is giving state judges the same options that federal judges already have when deciding if a person should be incarcerated or released into the community. 

When an undocumented person is accused of a federal crime, ICE typically places a detainer on that defendant so they can be placed in deportation proceedings after the conclusion of their case, Hurwit said. Federal judges often have to weigh immigration status when deciding whether or not to grant supervised release — which is similar to probation — because the government can’t monitor people once they’re deported. 

If judges rely on the Idaho Supreme Court ruling to deny undocumented people probation, “it’s going to limit the bargaining ability of prosecutors and defense attorneys” in plea deals, Hurwit said. 

Immigration status can change

Some attorneys and legal scholars questioned whether state court judges and attorneys have the background to properly assess immigration status. 

Perez Garcia’s defense attorney, Madson, told InvestigateWest by phone that during the sentencing hearing, he didn’t think his client’s immigration status would be discussed at all. He believed Perez Garcia could be placed on probation and allowed to “begin the process to become a legal citizen.” 

Andrade, an immigration attorney, said the Idaho Supreme Court justices should have questioned Simpson’s conclusion that it was impossible for Perez Garcia to comply with federal law, but that wasn’t a part of their analysis. While justices said his reentry crime meant Perez Garcia’s presence was a “continuing violation” of federal law, there may have been paths for Perez Garcia to get legal status, Andrade and Stumpf said. 

“The conclusion that (Perez Garcia) was going to be unlawfully here and had made the choice between returning to the country legally versus illegally was not contested,” Andrade said.

For example, she said individuals who reenter the U.S. after previously being deported could still obtain asylum if they can show they fear for their safety in their home country, though the Trump administration has made it a greater priority to prosecute illegal reentry.  

There are also other factors that can prolong an undocumented person’s path to legal status, said Stumpf, the law professor. 

The backlog of immigration cases is lengthy, with many immigrants waiting years before their case is heard by a judge. 

“The fact that somebody came to the United States without authorization, and is unlawfully present here says nothing about their ability to get lawful status here,” Stumpf said. “There’s certain pathways that Congress has created that you can only obtain if you are in removal proceedings, so in some ways, what the court is not taking into account at all is the fact that immigration status is a fluid, flexible status.”

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For that reason many state judges have avoided taking someone’s legal status into consideration during criminal sentences, Chin said. 

“I think many judges might not take undocumented status particularly seriously, given the wide range of circumstances which lead to people being in the United States without status, including, for example, people brought to the United States as children,” Chin said in an email to InvestigateWest. “An additional reason is that immigration law is complex, and people who do not now have status might ultimately be allowed to stay.” 

Immigration attorneys worry that the decision will put undocumented defendants who would normally be granted probation for minor offenses in jail. 

“Now you have people that are going to be taken from the home, be unable to work, that very likely come from mixed status families that are going to lose support,” Andrade said, adding that Idaho’s jails and prisons are already overcrowded.

People in custody are also easier targets for deportation, said Stumpf. 

She added that deporting someone who is already in custody also bolsters the Trump administration’s claims that it is going after “the worst of the worst.” 

“They can say, ‘We’ve caught this person who was incarcerated for five years,’” she said. “It’s not as powerful for ICE to be able to say, ‘We’ve got somebody who was on probation for five years,’” she said. 

For Perez Garcia, the immigration system moved faster than his state appeal. 

A month after Simpson sentenced him to prison, Perez Garcia appealed the ruling. But it would take more than a year to reach the Idaho Supreme Court, which did not hear his case until October 2025. 

The day after the hearing, his lawyers told the Supreme Court that Perez Garcia had been deported.